In 1984, the U.S. Congress established the National Center for Missing & Exploited Children (NCMEC). The organization was reauthorized by the Congress and the President in 2013 with $40 million in government funding. The group calls itself a “private, non-profit organization” that serves as a clearinghouse and a resource center for parents of missing children, educators, communities at large, and state and federal law enforcement agencies.
Is the National Center for Missing & Exploited Children Required to Follow 4th Amendment Search and Seizure Mandates?
But is NCMEC really a “private” entity or is it a governmental entity; more specifically a government agent under Fourth Amendment jurisprudence?
The U.S. Supreme Court has long established that a search and seizure by a private individual or entity does not enjoy Fourth Amendment protections, unless the private actor is acting as an agent of the government.
Is NCMEC Private Actor of Governmental Agent
The Tenth Circuit Court of Appeals was recently called upon to answer the question of whether NCMEC is a “government agent” sufficient to invoke Fourth Amendment protection by a criminal defendant who had evidence of criminal wrongdoing seized by the organization.
In an August 5, 2016 opinion, the appeals court ruled that NCMEC is a government agent because of its close relationship with law enforcement agencies conducting criminal investigations. The opinion involved the case of Walter E. Ackerman who was convicted through a conditional guilty plea of possession and distribution of child pornography.
AOL Sends Child Pornography to NCMEC
The background factors of the Ackerman case are relatively straightforward: his internet service provider (ISP)was AOL. This particular ISP has an “automated filter” that screens emails sent through its system for child pornography and is designed to “thwart” its transmission. Ackerman sent an email with four attached images, one of which AOL determined was child pornography. The ISP blocked transmission of the images and shut down Ackerman’s email account.
The Tenth Circuit pointed out that AOL did precisely what federal law requires: it sent a “report” to NCMEC through the group’s online tool called Cyber Tipline. The report was accompanied by Ackerman’s email with its four images. An NCMEC analyst examined the four images and determined that all four—not just the one identified by AOL—“appeared to be child pornography.”
NCMEC Sends Report to Law Enforcement
Once this determination was made, NCMEC notified law enforcement about the illegal images and where Ackerman lived, eventually leading to a federal grand jury indictment. The evidence that formed the basis for the indictment was the four images determined to be child pornography by NCMEC.
Prior to his guilty plea, Ackerman moved to suppress this information, arguing it was the result of an “unreasonable search” conducted by NCMEC. The district court denied the motion.
Pursuant to the conditions of his guilty plea, Ackerman appealed the suppression denial to the Tenth Circuit. The appeals court set forth the “two difficult questions” presented by the appeal:
“ … the Fourth Amendment only protects against unreasonable searches undertaken by the government or its agents—not private parties. So Mr. Ackerman’s motion raises the question: does NCMEC qualify as a governmental entity or agent? Even if it does, a second hard question remains. The Supreme Court’s ‘private search’ doctrine suggests the government doesn’t conduct a Fourth Amendment ‘search’ when it merely repeats an investigation already conducted by a private party like AOL. Which raises this question: did NCMEC simply repeat or did it exceed the scope of AOL’s investigation? For its part, the district court denied Mr. Ackerman’s motion to suppress both because NCMEC is not a government actor and, alternatively and in any event, because NCMEC’s search didn’t exceed the scope of AOL’s private search.”
The Tenth Circuit disagreed with both points.
NCMEC is Government Agent
The appeals court first explained its reasoning for concluding NCMEC is a “government entity”:
“NCMEC’s law enforcement powers extend well beyond those enjoyed by private citizens—and in this way it seems to mark it as a fair candidate for a governmental entity. NCMEX’s two primary authorizing statutes—18 U.S.C. § 2258A and 42 U.S.C. § 5773(b)—mandate its collaboration with federal (as well as state and local) law enforcement is over a dozen different ways, many of which involve duties and powers conferred on and enjoyed by NCMEC but no other private person. For example, NCMEC is statutorily obliged to operate the official national clearinghouse for information about missing and exploited children, to help law enforcement locate and recover missing and exploited children, to ‘provide forensic technical assistance … to law enforcement’ to help identify victims of child exploitation, to track and identify patterns of attempted child abductions for law enforcement purpose, to ‘provide training … to law enforcement agencies in identifying and locating non-compliant sex offenders,’ and of course to operate the Cyber Tipline as a means of combating Internet child sexual exploitation … Responsibilities and rights Congress has extended to NCMEC alone ‘under Federal law’ and done so specifically ‘to assist or support law enforcement agencies in administration of criminal justice functions.’ This special relationship runs both ways, too, for NCMEC is also empowered to call on various federal agencies for unique forms of assistance in aid of its statutory functions.”
The appeals court did not stop there. It said that even if NCMEC could not be considered a “governmental entity” for Fourth Amendment purposes, it certainly acted as a “government agent” in the Ackerman case. The court explained:
“But in this particular case it doesn’t much matter which agency test you might wish to employ. Even under this court’s decision in Souza or similar decisions adopted in other circuits it’s hard to see how we could avoid deeming NCMEC the government’s agent in this case. Souza suggests that we should first ask whether the government ‘knew of or acquiesced in’ NCMEC’s putative search. Here we know Congress statutorily required AOL to forward Mr. Ackerman’s email to NCMEC; Congress statutorily required NCMEC to maintain a Cyber Tipline to receive emails like Mr. Ackerman’s; Congress statutorily permitted NCMEC to review Mr. Ackerman’s email and attachments; and Congress statutorily required NCMEC to pass along a report about Mr. Ackerman’s activities to law enforcement authorities. All at the government’s expense and backed by threat of sanction should AOL have failed to cooperate. All with special dispensation, too, to NCMEC to possess and review contraband knowingly and intentionally. This comprehensive statutory structure seems more than enough to suggest both congressional knowledge of and acquiescence in the possibility that NCMEC would do exactly as it did here.”
NCMEC Conducted Actual Search
Whether NCMEC functioned as a government entity or agent in the Ackerman case did not end the inquiry. The central issue left for the court to decide was whether NCMEC conducted an “actual search” that led to the seizure of Ackerman’s email and ensuing examination of its attachments; or whether the organization had simply repeated AOL’s search and examination. The court concluded that NCMEC had indeed conducted an independent search with its own examination of Ackerman’s emails and its attachments and that the search violated the Fourth Amendment because it was carried out by NCMEC acting as either a government entity or agent without a warrant.
This strong decision has been needed for a long time. While NCMEC provides laudable assistance to private individuals and public entities in the area of missing and exploited children, the organization functions as both a government entity and agent with the statutorily required assistance it must provide law enforcement agencies conducting criminal investigations into missing and exploited children. It is long past due that this obvious reality be acknowledged and constitutionally mandated protections be maintained.